United States v. Nixon at Fifty: Why Judge Cannon Is Wrong About the Attorney General’s Authority to Select a Special Counsel

Judge Aileen Cannon

United States v. Nixon at Fifty: Why Judge Cannon Is Wrong About the Attorney General’s Authority to Select a Special Counsel

By Marty Lederman 

  (@marty_lederman)  is a professor at the Georgetown University Law Center.  He was Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2021-2023 and 2009-2010, and an Attorney Advisor in OLC from 1994-2002.

Fifty years ago today, the Supreme Court issued its landmark ruling in United States v. Nixon. Nixon involved the constitutionality of a subpoena for tapes that District Judge John Sirica issued to the sitting President at the behest of Leon Jaworski, a “special prosecutor” who had an unprecedented degree of independence from DOJ leadership (and from the President). Jaworski was appointed to his position by Acting Attorney General Robert Bork. (Indeed, Bork separately created the office that he appointed Jaworski to fill, as I explain below.) In the course of his opinion for a unanimous Court, Chief Justice Warren Burger held that Congress had vested the Attorney General with the power to make such a delegation of authority to the special prosecutor. United States v. Nixon, 418 U.S. 683, 694 & n.8 (1974). As I discuss at the end of this essay, that was not a controversial position at the time—indeed, even President Richard Nixon himself, represented by esteemed counsel, concurred that the Acting Attorney General had such statutory authority, and no one in Congress or the legal community (to my knowledge) suggested otherwise.

For almost a half-century thereafter, the Supreme Court’s conclusion about the Attorney General’s authority became common, uncontradicted wisdom. No one in any of the three branches of government ever questioned it, and Attorneys General repeatedly acted in accord with, and reliance upon, it.

Until last Monday. On July 15, U.S. District Judge Aileen Cannon concluded that the Supreme Court was wrong about the Attorney General’s authority. And on the basis of that holding, Judge Cannon granted former President Donald Trump’s motion to dismiss the indictment against him in the Mar-a-Lago retained-documents case.

This essay explains why the Supreme Court (and virtually everyone else for 50 years) was right about the Attorney General’s authority and why Judge Cannon therefore erred in dismissing the indictment.

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 [Disclosure: I, Marty Lederman, was a Deputy Assistant Attorney General in the DOJ Office of Legal Counsel at the time of the Attorney General’s appointment of Jack Smith as Special Counsel. Nothing in this essay, however, reflects any confidential information from my tenure at OLC.]